Australian Maritime Officers' Union v Assistant Minister for Immigration and Border Protection

The Australian Maritime Officers' Union and others brought an appeal against the Assistant Minister for Immigration and Border Protection, challenging the validity of a legislative instrument that altered the definition of "offshore resources activity" under the Migration Act 1958. The Full Court of the Federal Court of Australia was tasked with determining whether the Assistant Minister had the authority to make the legislative changes and if the new definition was valid under the Act. The appellants argued that the Minister’s legislative instrument was beyond the power conferred by the Act, specifically under section 9A(6), as it effectively removed the content of the definition of "offshore resources activity" set out in section 9A(5). The court had to ascertain whether section 9A(6) allowed the Minister to eliminate the content of the definition.

The court found that the legislative instrument was invalid because it contravened the Act by removing the content of the definition of "offshore resources activity". The court reasoned that the legislative power granted under section 9A(6) was to add to or except from the definition, not to nullify it entirely. The court held that the Minister could not, under section 9A(6), extinguish the definition's content as it fundamentally altered the scope of the migration zone, which was not within the power conferred by the Act. Consequently, the appeals were allowed, and the legislative instrument was declared invalid. The Assistant Minister was ordered to pay the appellants' costs.

The court's decision was definitive in stating that the legislative instrument did not fall within the authority granted by the Act and was therefore invalid. The court emphasised that the power to modify the definition under section 9A(6) did not extend to removing the definition's content entirely. The orders reflected the court's findings, declaring the legislative instrument invalid and setting aside the primary judge's orders. Additionally, the Assistant Minister was required to pay the appellants' costs as per the agreement between the parties.